International Union of Operating Engineers

INTERNATIONAL UNION OF OPERATING ENGINEERS 23 area where he told the observers for the Petitioner and the Employer that no employees were to be released for voting until he had received instructions from the Regional Director. The Board agent remained at the polling area until 3: 15 p. in. at which time he again left to telephone the Regional Office. He advised the observers to detain any voters presenting themselves at the polls during his absence. He returned after approximately 7 to 10 minutes and commenced the bal- loting at about 3:25 p. m. At no time during the period between 3 p. in. and 3: 25 p. m. did any employees present themselves at the polls to vote. No employees were disenfranchised by this deviation from the scheduled hours for voting. Moreover the tally results show that the five eligible voters who did not vote could not have affected the results of the election. We find the Union's objections to the election to be without merit and, in accordance with the recommendation of the Regional Director, hereby overrule them. As a majority of the employees eligible to vote have voted in favor of the proposition, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT IS HEREBY CERTIFIED that at least a majority of employees eligible to vote in the election have voted to rescind the authority of District No. 8, International Association of Machinists, AFL-CIO, to make an agreement requiring membership therein as a condition of employ- ment as provided in Section 8 (a) (3) of the Act. MEMBER BEAN took no part in the consideration of the above Deci- sion and Certification of Results of Election. International Union of Operating Engineers, Local 12 and Crook Company i International Union of Operating Engineers, Local 12 and Willard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company. Cases Nos. 01-CC-198 and 91-CC-.00. January 9,1956 DECISION AND ORDER . On September 7, 1955, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that 1 The caption in this consolidated proceeding has been amended to show the names of the Employers involved rather than the name of Mrs. Edwin Selvin, the individual who filed the charges on behalf of the Employers. Furthermore, although the Intermediate Report designates Mrs. Selvin as appearing "pro se," she appeared as the representative of both Employers, and the,report is hereby corrected accordingly. 115 NLRB No. 9. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in certain unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. Thereafter, the General Counsel and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and'the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, additions, and modi- fications noted herein. A. Jurisdiction The Trial Examiner predicated his findings regarding the business operations of both Employers upon testimony of the general manager of Crook and the assistant general manager of Shepherd. The Re- spondent contended at the hearing, and in its except;ioihs and brief, that this testimony consisted of uncorroborated hearsay, conclusions, and opinions and did not constitute an adequate basis for the asser- tion of jurisdiction .2 However, as both witnesses were familiar with the operations of their respective companies and testified from their personal knowledge, and as the Respondent presented no witnesses and did not cross- examine the general counsel's witnesses on this issue, we find, as apparently did the Trial Examiner, that the testimony of the two officials is not only competent and credible, but of sufficient probative value to warrant the assertion of jurisdiction over both Employers.3 B. The violations of Section 8 (b) (4) (A) of the Act 1. The Trial Examiner found, and we agree, that the Respondent, by inducing and encouraging employees of Crowell & Larson to re- fuse to perform services for their employer with an object of forcing 2 The Respondent relies upon N L R B. v Haddock Engineers, Limited, 215 F. 2d 734 (C A 9), 'in which the court denied enforcement of the Board 's order against the respond- ent union on the ground that the union's objections to the adequacy of the commerce evi- dence weie well taken That case is distinguishable from the present one , however, as the data upon which jurisdiction was premised in that case was presented in written form, and the individual who had prepaiedthe written material was not under oath nor avail- able for cross-examination See W B Jones Lumber Company, Inc, 114 NLRB 415 a Case-Metcalf Machinery Co, et al , 114 NLRB 1520, wherein the Board recently asserted jurisdiction over Crook. INTERNATIONAL UNION OF OPERATING ENGINEERS 25 or requiring such employer to cease doing business with Crook, vio- lated Section 8 (b) (4) (A) of the Act. The Respondent began picketing the Crook premises about February 17, 1955. On March 30, Neuenschwander, a Crook employee, went to a job site of Crowell & Larson to adjust some machines which had been obtained from Crook. While he was thus engaged, Mussro, a busi- ness representative of the Respondent,' came to the job site. He asked Neuenschwander the name of-his employer and whether he had come through a picket line. When Neuenschwander admitted that he had come through the picket line, Mussro first instructed him to leave, but then remanded this instruction and announced that Neuenschwander could finish his work "but we are not going to work." This remark was made, as the Trial Examiner found, within the hearing of the Crowell & Larson employees. It also appears that it was made in a loud voice, as Neuenschwander was slightly hard of hearing ; and that the Crowell & Larson employees were having their luncheon at the time and had gathered in the vicinity. In addition, as the Trial Ex- aminer found, Dias and Smedley, employed by Crowell & Larson, testified that they, heard Mussro make such remarks to Neuen- schwander. - In these circumstances, we conclude that Mussro's re- marks were audible to the assembled Crowell & Larson employees. What occurred thereafter supports the filiding that Mussro was overheard by the Crowell & Larson employees, and also that his state- ment had the effect of inducing those employees to stop working until Neuenschwander left.5 When the luncheon recess came to an end, the group of employees did not return to work but continued to con- verse with Mussro. While the Respondent contends that the men were delayed in their return to work because Mussro was making a routine check of their union cards, we note that Mussro admitted that he or- dinarily checked one card at a time so that the remaining employees could proceed with their work. And the fact that the card check took considerably longer than it ordinarily did is not explained by Mussro's position that it was prolonged by certain employees raising various personal problems while he was checking the cards. The testi- mony of the witnesses, whom the Trial Examiner credited, does not support this assertion and, in any event, there was no more reason for the entire group to be present during such discussions than for all of them to be present while Mussro checked each card. The explanation for the delay is found, as the Trial Examiner pointed out, in the credited testimony of Dias and Smedley. Accord- 4 It is undisputed , and we find, that Mussro, whose conduct constitutes a part of the evidence relied upon herein , was acting within the scope of his general authority on the occasion involved G Whether or not Alussio instructed the Crowell & Larson employees in so many words not to resume working after the luncheon recess until Neuenschwander left, this was clearly implicit in what he did say see Cisco Construction Company, 114 NLRB 27 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to them, while Mussro was talking to the Crowell & Larson em- ployees, he reminded them that Crook was being picketed, told them they should not work while a Crook employee was repairing equip- ment at the job site, asked if the machines on which Neuenschwander had been working came through the picket line, took the serial numbers of these machines, and threatened that if he found they had come through the picket line he would return and "shut down tight." 6 Although Dias was the foreman on the job, and had authority to order the men back to work, it does not follow, as the Respondent argues, that any work stoppage therefore resulted from his failure to do so. As Dias explained in his testimony, he did not direct the men to return to work because of Mussro's threat to shut down the opera- tion if the men did not assemble as he directed. The immediate cause of the failure to return is the threat itself. After Neuenschwander had departed, the men returned to work with Mussro's permission. The work stoppage had lasted about an hour after the end of the luncheon recess, and the employer deducted an hour's wages from each of the men. This is hardly consistent with the Respondent's arguments that the men were delayed in returning to work because their foreman failed to direct them to do so, or because they were awaiting delivery of equipment, or because of the other equally unpersuasive reasons, unconnected with Mussro's presence, which were advanced by the Respondent. The Respondent states in its brief, as to Mussro's activity : "When viewed unemotionally, this incident at best is merely a sporadic mo- mentary failure to return to work." But the determination as to whether a union has violated the Act by inducing a proscribed work stoppage does not depend upon the duration of the stoppage. As Mussro's conduct was designed to cause a concerted refusal by the Crowell & Larson employees to work while Neuenschwander was pres- ent, the extent to which this purpose met with success is immaterial' 2. The Trial Examiner found, and we agree, that the Respondent, by inducing and encouraging employees of McCammon-Wunderlich Company to refuse to perform services for their employer with an object of forcing or requiring such employer to cease doing business with Shepherd, violated Section 8 (b) (4) (A) of the Act. The Respondent began picketing the Shepherd premises on May 23, 1955. On May 24, one Sterling and an unidentified helper, em- ('We agree with the Trial Examiner that Mussro's denials of the remarks and conduct attributed to him and his claim that he took the serial numbers in pursuance of a hobby were patently incredible , Nor does the fact that the Crowell & Larson employees there- after operated the Crook equipment, and that Mussro never did return to shut down the operation, prove that he did not threaten to do so, as the Respondent contends 7 See Associated Musicians of Greater New York, Local 802, etc., 110 NLRB 2166, enfd. 226 F 2d 900 (C A 2). In General Millwork Corporation, 113 NLRB 1084, the Board stated • To constitute inducement in the statutory sense, it is not necessary that. the union 's appeal succeed in producing 'a strike or concerted refusal to work ; it is enough that the appeal was made with that purpose." INTERNATIONAL UNION OF OPERATING ENGINEERS 27 ployees of Shepherd, went to a job site of McCammon to repair some equipment which had been obtained from Shepherd. They came in a truck bearing Shepherd's name. Hunter,8 the Respondent's job stew- ard on this project, asked Sterling if the Shepherd shop was being picketed and Sterling admitted that it was. Hunter then asked Ster- ling if he intended to do some work there. When Sterling replied that he did, Hunter threatened to close the job down while Sterling was working there. Hunter proceeded to drive about the project giv- ing the "thumbs-up" signal to cease work. The equipment operators stopped working- and congregated at a central point. According to - the uncontradicted testimony of Waggoner, the superintendent of the project, which we credit, upon being informed about the work stop- page, he directed Sterling to leave and then told Hunter that Sterling was leaving and Hunter could tell the men to go back to work. Work was resumed upon Sterling's departure. Estimates of the length of the work stoppage varied from 20 to 45 minutes. Like the Trial Examiner, we find no merit in the Respondent's con- tention that the work stoppage was a voluntary spontaneous action engaged in by the operators without any inducement from the Re- spondent and, in fact, without even its knowledge. Hunter did not testify. Two employees called by the Respondent, Luther and Thoma- son, testified that before work began at 4 a. in. on the day of the Shepherd truck incident, a number of the equipment operators met and agreed to stop working if a nonunion man came on the job, or, as Thomason put it on cross-examination, "if the Shepherd truck came on the job." These two witnesses were vague and contradictory in their testimony about the meeting. However, they were consistent in asserting that Hunter, who worked the same shift and generally ar- rived 10 or 15 minutes before work began, was not present, that they did not know where he was, and that no other union representative took part in the meeting. Both testified also that when the Shepherd truck appeared, various operators drove around giving the thumbs- up signal. Again there was vagueness and contradiction in their testimony as to the identity of the operators who did so, but the same unanimity that Hunter was not in sight. Under all the circumstances and on the entire record, including the fact that the Trial Examiner stated that he had "serious doubts concerning the veracity of this testimony," we do not credit the testi- mony of Luther and Thomason. As the Trial Examiner also found, other indications that Hunter caused an unlawful work stoppage are shown by the fact that Foreman Green heard Hunter direct a crane operator to stop working while 8 On the basis of Sterling's description of the 'individual he referred to as "Hunt" and the testimony of other witnesses about this incident, we find that "Hunt" was a designa- tion of Hunter We also find that Hunter 's conduct with relation to the Shepherd em- ployees was within the scope of his general authority as•a union steward 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Shepherd truck was there or risk a $100 fine. When Green asked Hunter the reason for this action, Hunter told him there was a Shep- herd truck on the job and so the job was shut down. When the crane operator'asked Green what he should do, Green advised him to comply. The Respondent maintains that the crane operator's work stoppage was therefore attributable to Green rather than to the Respondent. It is obvious, however, that the foreman's permission to the operator to comply with Hunter's demand rather than subject himself to a fine was not the real cause of the operator's work stoppage and cannot absolve the Respondent of liability for Hunter's threats. Finally, the Trial Examiner found, in connection with this Shep- herd incident, that Waggoner called Seymour, a representative of the Respondent, at the union office and protested the work stoppage. Seymour told him that as there was a picket line at the Shepherd shop, Shepherd employees would not be permitted to work at the project. Upon inquiry by Waggoner, Seymour stated that Shepherd employees could not even do the work called for by warranties on the equipment obtained from Shepherd and that Waggoner could not pur- chase parts from Shepherd. Seymour did not testify. The Respond- ent contends that Seymour was not adequately identified and was not shown to be an agent of the Respondent. Waggoner testified, how- ever, that he called the union office and asked for Seymour, and that when a man who identified himself as Seymour calve to the telephone, Waggoner recognized his voice from prior conversations. Further- more, Seymour is identified in the record as personal representative to Bronson, business manager of the Respondent. In conclusion, we are convinced, from the entire record, that the Respondent caused the McCammon employees to engage in a pro- hibited work stoppage in order to force McCammon to stop doing business with Shepherd. As we found above, the Respondent engaged in similar unlawful activity, involving employees of Crowell & Lar- son, directed against Crook. The complaint alleged, and the Trial Examiner found, that certain other acts of the Respondent, involv- ing other employers than McCammon and Crowell & Larson, also constituted secondary boycotts in violation of the Act. As we would issue the same kind of restraining order against the Respondent whether it was predicated on one or more violations of this type, we are of the opinion that "no good purpose could be served in consider- ing each incident separately with a view of determining whether it constitutes a violation." 9 o,foliet Contractors Association, at at v N L R B , 202 F 2d 606 (C A 7), cert denied 346 U S 824 The Respondent states in its brief , in connection with the McCammon incident • "Even though a finding of a technical violation might be made , which we do not concede , stand- ing alone as it now'does, it is not sufficient to warrant a finding of a violation of 8 (b) (4) " We are satisfied, however, that the violation we have found based upon the McCam- mon incident was not merely a technical one Furthermore, as set forth above, such a violation wauants the issuance of an order whether or not it stands alone INTERNATIONAL UNION OF OPERATING ENGINEERS 29 Accordingly, without passing upon the other incidents discussed in the Intermediate Report, we find that the Respondent violated Sec- tion 8 (b) (4) (A) as to both of the employers herein by inducing and encouraging employees of Crowell & Larson to refuse to perform services for their employer with an object of forcing or requiring such employer to cease doing business with Crook, and by inducing and encouraging employees of McCammon-Wunderlich Company to refuse to perform services for their employer with an object of forc- ing or requiring such employer to cease doing business with Shepherd. C. The violations of Section 8 (b) (4) (B) of the Act 1. The Trial Examiner found, and we agree, that the Respondent, in inducing and encouraging employees of Crowell & Larson to refuse to perform services for their employer, had as an objective forcing or requiring Crook to bargain with it as the representative of the Crook employees without having been certified as such representative, in violation of Section 8 (b) (4) (B) of the Act. The Respondent began picketing the Crook premises about Feb- ruary 17, 1955. The pickets were withdrawn when Crook entered into a consent-election agreement with the Respondent on March 3. The employees voted against representation by the Respondent in the ensuing election. Thereafter the picketing was resumed and has been conducted intermittently since then. On May 11, 1955, the Respondent sent a letter to a number of em- ployers in the area, including Crook. This letter was signed jointly by representatives of the Respondent and of another union. It was signed, for the Respondent by Seymour, personal representative, on behalf of Business Manager Bronson. The letter was as follows : During the past several months, we have at various times, attempted to arrange a meeting with the Equipment Distributors in Southern California, for the purpose of discussing an Agree- ment between your firm and the below signatory.Unions. The Operating Engineers, in handling the procedures, have been advised by Mr. W. W. Shepherd of the Shepherd Machinery Company, that he, Mr. Shepherd, had been delegated by the vari- ous firms, to speak for them. In discussing this issue with Mr. Shepherd, it was evident that we could not proceed and enter into negotiations. We are, therefore, requesting that a representative of your Company, be present May 16, 1955, at 10: 00 a. m. at the Operat- ing Engineers' Building, 2323 West 8th Street, Los Angeles, California, for the purpose of entering into negotiations with the Unions involved, to conclude a workable Agreement. The Unions will have a proposal to offer at this meeting. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 16, Crook filed its petition which was incorporated with several other employer petitions in the Casey-Metcalf case.10 On May 17, the Respondent wrote to the Board, in connection with the petitions in Casey-Metcalf, that it did not claim to represent a majority of the employees in any of the units set forth in those petitions. About a week or 10 days later, however, Seymour called W. G. Crook, principal stockholder of Crook, and, according to the latter's uncontradicted testimony, requested an appointment, stating that "he would like to make an agreement with us and a contract as to our labor situation." The Respondent repeated, at the hearing and in its brief, its dis- avowal of any claim to be the bargaining representative of the Crook employees. It sought to justify the continued picketing of the Crook premises on the grounds that it was in protest of (1) an alleged dis- criminatory discharge of 10 employees, and (2) the performance by nonunion employees of work involving the maintenance and repair of equipment operated by the Respondent's members, as jurisdiction over such work had been awarded to the Respondent by the American Federation of Labor. The testimony of credited witnesses establishes that the 10 employees were laid off, are being called back to work as business operations warrant, and were permitted to vote in the consent election without challenge. Moreover, although the layoffs occurred on February 15, the Respondent ceased picketing after the consent-election agreement was entered into on March 3 and resumed after the election results were announced. It is evident therefrom that the picketing was not directed against the layoffs but was designed to obtain recognition despite the adverse election results. We therefore find no merit in the Respondent's first ground for maintaining the picket line. We like- wise find no merit in the second ground as the Respondent's actions in some of the situations discussed in the Intermediate Report 11 did not involve the maintenance or repair of equipment operated by its members. Moreover an intraunion ruling cannot constitute a defense to unlawful conduct,12 nor can secondary boycott activity be justified on the ground that the union involved had a motive which would have been lawful if the activity had been lawful.13 - Accordingly, we find that the Respondent's repeated disclaimers of representative status were not made in good faith in view of its picketing and other inconsistent conduct detailed above, manifesting a desire to gain representative status without Board certification. 14 10 See footnote 3,,above 11 Although we have not passed upon the legal effect of these incidents, we find that they occurred as set forth in the Intermediate Report 12 Sub Grade Engineering Company, 93 NLRB 406, 407 13 Washington-Oregon Shingle Weavers' District Council, at al , 101 NLRB 1159, enfd. 211F 2d149 (C A 9) 14 Francis Plating Co , 109 NLRB 35 ; Petrie's, an Operating Division of Red Robin Stores, Inc, 108 NLRB 1318, Pasco-Kennewick Building and Construction Trades Coun- cil, 111 NLRB 1255. INTERNATIONAL UNION OF OPERATING ENGINEERS 31 We find, therefore, upon the entire record, that an objective of the Respondent's conduct was to force or require Crook to recognize it as the collective-bargaining representative of the Crook employees without its having been selected as such representative, in violation of Section 8(b) (4) (B) of the Act. - 2. The Trial Examiner found, and we agree, that the Respondent, in inducing and encouraging employees of McCammon-Wunderlich Company to refuse to perform services for their employer, had as an objective forcing or requiring Shepherd to bargain with it as the representative of the Shepherd employees without having been certi- fied as such representative, in violation of Section 8 (b) (4) (B) of the Act. In January 1955, a union representative got in touch with Mont- gomery, the assistant general manager of Shepherd, and, according to the latter's uncontradicted testimony, stated "that the union would like to establish a contract with the Shepherd people...." During March and April, Bronson and Seymour approached Montgomery several times to discuss a contract. At one point they submitted a contract in effect at another similar operation, and requested that Shepherd enter into such a contract. Montgomery suggested that, as the Respondent had not established that it represented the Shepherd employees, it should seek a Board election. The representatives of the Respondent replied that no election was desired. Shepherd filed a representation petition with the Board on April 8, but it was dismissed by the Regional Director following the Respond- ent's filing on April 15 of a disclaimer of representative interest. Thereafter the Respondent distributed a notice to the Shepherd em- ployees requesting them to attend a meeting to discuss representation, and Shepherd received the Respondent's May 11 written request, set forth above, to meet and discuss an agreement. Shepherd considered these actions inconsistent with the Respondent's disclaimer and again filed a petition on May 15 (21-RM-350), which was one of the peti- tions filed in the Casey-Metcalf case, supra. On May 17 the Respond- ent filed with the Board the disclaimer referred to above in connection with Crook. On May 20, because of, the Respondent's disclaimer, Shepherd withdrew its petition, and the withdrawal was approved on June 15. After Montgomery took the position that a Board election should be sought, Bronson and Seymour discontinued their negotiations with Shepherd. The Respondent began picketing Shepherd about May 23, picketed continuously until a few weeks before the hearing, and has picketed intermittently since then. The Respondent maintains that it was picketing Shepherd to pro- tect its grant of jurisdiction over work which was being done by non- 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union Shepherd employees. We found this same contention without merit as to the Crook picketing, and are similarly convinced, upon the entire record, that it was not the real reason for picketing Shepherd. Accordingly, we are convinced, and find, that the Respondent's dis- claimers are of no effect in view of its inconsistent actions. We further find, upon the entire record, that one of the Respondent's objectives was to force or require Shepherd to recognize it as the collective- bargaining representative of the Shepherd employees without its having been selected as such representative, in violation of Section '8 (b) (4) (B) of the Act.15 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Union of Operating Engineers, Local 12, Los Angeles, California, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Inducing and encouraging the employees of Crowell & Larson, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform any services for their employer where an object thereof is to force or require Crowell & Larson, or any other employer, to cease doing business with Crook Company, or to force or require Crook Company to recognize or bargain with the above-named labor organization as the collective-bargaining repre- sentative of its employees, unless and until said labor organization has been certified as such bargaining representative in accordance with the provisions of Section 9 of the Act. (b) Inducing and encouraging the employees of McCammon- Wunderlich Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform any services for their employer where an object thereof is to force or require McCammon-Wunderlich Company, or any other employer, to cease doing business with Shepherd Machinery Company, or to force or require Shepherd Machinery Company to recognize or bargain with the above-named labor organization as the collective-bargaining repre- sentative of its employees unless and until said labor organization has been certified as such bargaining representative in accordance with the provisions of Section 9 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : L. We do not adopt the Trial Examiner's limitation that this was an objective of the Respondent "at least until and on May 11, 1955," but find that it has been a continuing objective of the Respondent INTERNATIONAL UNION OF OPERATING ENGINEERS 33 (a) Post at its business office in Los Angeles, California, copies of the notice attached hereto marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the official representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS MURDOCK and BEAN took no part in the consideration of the above Decision and Order. 11 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Older" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 12 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that : WE WILL NOT induce or encourage the employees of Crowell & Larson, or any other employer, to engage in a strike or con- certed refusal in the course of their employment to perform any services for their employer where an object thereof is to force or require Crowell & Larson, or any other employer, to cease doing business with Crook Company, or to force or require Crook Company to recognize or bargain with us as the collective-bar- gaining representative of its employees, unless and until we have been certified as such bargaining representative in accordance with the provisions of Section 9 of the National Labor Relations Act. WE WILL NOT induce or encourage the employees of Mc- Cammon-Wunderlich Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform any services for their employer where an object there- of is to force or require McCammon-Wunderlich Company, or' any other employer, to cease doing business with Shepherd Machinery Company, or to force or require Shepherd Ma- 390609-56-vol 115-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chinery Company to recognize or bargain with us as the collec- tive-bargaining representative of its employees, unless and until we have been certified as such bargaining representative in ac- cordance with the provisions of Section 9 of the National Labor Relations Act. INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 12, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Mrs. Edwin Selvin, the General Counsel of the National Labor Relations Board issued his consolidated complaint dated June 21, 1955, against International Union of Operating Engineers, Local 12, herein called the Respondent,' alleging that the Respondent had committed unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B) and Section 2 (6) and,(7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In respect to unfair labor practices, the complaint alleges that the Respondent has induced and encouraged employees of Yankee Body Shop, Crowell & Larson, Paving Materials Company, and Union Pacific Railroad Company to engage. in strikes or concerted refusals in the course of their employment to perform services for their respective employers with an objective of forcing or requiring their em- ployers to cease doing business with Crook Company, hereinafter called Crook, and to force or require Crook to recognize or bargain with" the Respondent as the col- lective-bargaining representative of Crook's employees. As further violations, it is alleged that the Respondent has induced and encouraged employees of Ralph Welker and of McCammon-Wunderlich Company to engage in strikes or concerted refusals in the course of their employment to perform services for their respective employers with an objective of forcing or requiring their employers to cease doing business with Shepherd Machinery Company, hereinafter called Shepherd, and to force or require Shepherd to recognize or bargain with the Respondent as the collective-bargaining representative of Shepherd's employees. The Respondent has filed an answer denying all material allegations in the, complaint. Pursuant to notice a hearing was held before the Trial Examiner in Los Angeles, California, from July 25 through 28, 1955.2 All parties were represented and participated in the hearing. A brief has been received from counsel for the Respondent .3 Upon my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF CROOK AND SHEPHERD4 Crook Company is a corporation engaged at Los Angeles, California, in sales and servicing of construction equipment. Its annual sales of equipment exceed 1 The complaint alleges, the answer does not deny, and I find that the Respondent is a labor organization within the meaning of Section 2 (5) of the Act 9 The all-party stipulation to correct p 115, 1 24 of the transcript so that the number there set forth will read 6Z6450, is approved and the correction noted. 3 Respondent's motions to dismiss the complaint are denied except to the extent herein- after set forth. 4I find no merit in Respondent's contention that the testimony of witnesses concern- ing the business operations of Crook and Shepherd is uncorroborated heaisay or that it is otherwise not probative. I find both to be in commerce within the meaning of the Act. INTERNATIONAL UNION OF OPERATING ENGINEERS 35 $1,000,000 in value, on which more than $100,000 in value is sold to purchasers outside the State of California. About 90 percent of the equipment purchased for resale is manufactured in States other than the State of California. Shepherd is a partnership engaged at Los Angeles, California, in sales and service of construction and farm equipment. Shepherd's purchases of such equipment from a manufacturer in Peoria , Illinois, exceed $ 1,000,000 in value annually. Its shipments of equipment to purchasers outside the•State of California exceed $ 100,000 in value annually. II. THE UNFAIR LABOR PRACTICES A. Concerning Crook About February 17, 1955, the Respondent established pickets at Crook's premises. On March 3, when a consent-election agreement was executed between the Respond- ent and Crook, the pickets were withdrawn. A representation election was con- ducted on March 9. No bargaining representative was chosen. Upon the ascer- tainment of that result Respondent's pickets reappeared and intermittently have remained. On May 17, the Respondent by letter to Crook denied that it was as- serting any claim to have status as bargaining representative for Crook's employees. 1. Leroy Campbell , a Crook employee, testified that on March 15 he drove a truck, presumably the property of his Employer, to Yankee Body Shop in Los Angeles. According to Campbell he was followed by a man in a gray Chrysler sedan 5 -who spoke to an employee of Yankee before Campbell delivered the truck. Campbell testified that he had seen the driver of the Chrysler on many occasions among the pickets before the Crook shop and that on at least one such occasion the driver appeared to be directing the pickets. Campbell delivered the truck and left. Ralph H. Ritz, an employee of Yankee Body Shop , a member of the International Association of Machinists, and shop steward for that organization at the place of his employment, testified that when sometime in March a truck was brought to Yankee Body Shop , a man asserting himself to be an agent for the Operating Engineers told Ritz that the truck had come through a picket line at Crook; that the truck was "hot." 6 The Respondent offered no evidence concerning this incident. 2. Fred Neuenschwander , a Crook employee, testified that on March 30 he went to a job in Glendora, California, where Crowell & Larson were operating some equip- ment. Neuenschwander's purpose was to make adjustments on machines which had been delivered to Crowell & Larson by Crook the previous day. Neuenschwander arrived on the job at about 11:45 a. in. and started to work. Crowell & Larson workers were then midway through their lunch period which,had begun at 11:30. In about 15 or 20 minutes, Joseph Mussro, a representative of the Respondent, approached and asked Neuenschwander the name of his Employer and if he had come through a picket line. Neuenschwander answered the questions . Mussro then said Neuenschwander had better leave but almost immediately withdrew the sug- gestion by saying in a loud voice, probably audible to the Crowell & Larson em- ployees who were standing nearby, "Well , you can go ahead and work, but we are not going to work." Neuenschwander said that he would be through with his job in a short time and continued at work . Neuenschwander- left at about 12:15 p. m. having completed his job. Mussro and the Crowell & Larson employees were then in a conversation; none had returned to work after the lunch recess. Tony Dias, a member of the Respondent and foreman for Crowell & Larson on the Glendora job, testified that he observed Neuenschwander and then Mussro arrive on the job. According to Dias, Crowell & Larson workers in his crew (about seven ) had their lunch period on March 30 from 11 : 30 to noon . Upon his arrival Mussro asked what a Crook employee was doing on the job and was informed that the man was adjusting a Tournapull. Dias overheard Mussro tell Neuenschwander that the men would not work with him on the job. Mussro then checked the union membership cards of the Crowell & Larson employees and asked them if they did not know that a picket line existed at Crook and that it was "wrong" for a Crook 6 The evidence establishes that the Respondent is the owner of n gray Chrysler sedan which on an earlier occasion was used to follow another Crook driver . I do not consider this circumstance to establish , 'however, that the Chrysler observed by Campbell was Respondent's property 6 Ritz had no recollection on the stand of hearing the word "hat " but testified that when he employed that word in a statement earlier given to a Board field examiner and when lie testified to its utterance in an ancillary proceeding in the United States district court, he was relying then upon a truthful recollection 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee to make repairs to equipment that could be made by members of the Respondent. Noticing that two Tournapulls appeared to be new, Mussro asked Dias if they had come through the Crook picket line. A few minutes before 1 p. in. Dias remarked that the men should return to work. Mussro agreed that they might do so but, having taken the serial numbers of the new Tournapulls, said that if he learned that the machines had come through the picket line, he would return and "shut down tight." Upon Mussro's departure, the men returned to work. Their employer, Crowell & Larson, did not pay them for the hour consumed by Mussro's visit. Eugene Smedley, a Crowell & Larson employee, a member of the Respondent, and a witness to this incident, testified that Mussro asked if the employees knew that Crook was being picketed. Smedley overheard Mussro tell Neuenschwander that Respondent's members on the job would not work as long as Neuenschwander was on the job. After checking membership cards, Mussro told the Crowell & Larson workers that they would violate some requirement of the Respondent if they worked while a Crook employee was on the job. Mussro said, according to Smedley, that if he discovered that the new Tournapulls had come through the picket line, he would return and shut down the job permanently and told the men to quit at once if a Crook employee returned to the job. Mussro left at about 12:55 p. in. and upon his departure the men resumed work, having been idle about 1 hour. Joseph Mussro, one of Respondent's business representatives, testified that he was at the Crowell & Larson job on March 30, that he spoke to Neuenschwander asking how long the adjustments would take, that he then checked union cards, and took the serial numbers of the new Tournapulls . Mussro denied that he suggested or directed that anyone cease work or refuse to work because of Neuenschwander's presence or that he made any mention of closing the job permanently. He explained that he .collected serial numbers of equipment such as Tournapulls as a hobby. According to Mussro, he remained on the job about 30 minutes and left well before 1 o'clock. 3. On April 19, Valentine Santillan, a Crook employee, went to the freight dock of the Union Pacific Railroad Company in Los Angeles to prepare two rollers for delivery to Crook customers. According to Santillan, he was followed from the Crook shop by William Willis, a vice president and business representative of the Respondent. While Santillan and another Crook employee, Soles, were preparing the rollers for delivery and maneuvering them from a flatcar to the freight dock, Willis remained on the scene. After about 2 hours Louis Vlashart, an employee of Paving Materials Company,7 appeared to take delivery of 1 of the rollers. As Santillan prepared to move the roller from the dock to the bed of Vlashart's truck, Willis came over and spoke to Vlashart, Vlashart then left, apparently to make a telephone call, and upon his return spoke. again- to Willis. Willis and another who had ac- companied him, obtained picket signs from their car and began picketing alongside the dock.8 Vlashart then refused to accept the roller. Jessie Sands, described as an employee of Union Pacific, then spoke to Willis. Picketing ceased and Willis and his colleague departed. Vlashart, saying that he could not take the roller because of the picketing, had already done so. The picketing had taken place for a period of about 15 minutes beside the dock where the roller was situated for unloading. Louis Vlashart testified that on April 19 he drove to the Union Pacific dock to pick up a roller. When he pulled his truck alongside the dock in preparation for loading, according to Vlashart, Willis approached him and asked if he knew that the roller was "hot." Vlashart said that he did not, whereupon Willis advised him that there was a picket line at the Crook shop, that the roller was "hot," and sug- gested that Vlashart telephone the business agent of his union for advice. Vlashart answered that his employer had instructed him to take delivery if no picket line existed. Willis, or his companion, then said, "Well, if that is all it takes, we'll put one up right now." Both then took picket signs from the car in which they had been sitting and paraded in the vicinity of the truck and loading dock. Upon the tele- phoned advice of his employer, Vlashart then drove away leaving the roller. Willis did not testify concerning this incident. I do not consider the evidence to establish by the requisite preponderance that the individual who spoke to Ritz at Yankee Body Shop concerning the Crook truck was an agent of the Respondent . I credit Campbell's testimony that he had seen the man at the picket line before Crook's premises where he appeared upon occasion to direct the conduct of the pickets. This is insufficient to prove however that he followed the Crook truck at the direction of the Respondent for it may well be that P Vlashart was 1 of 3 drivers employed by Paving Materials Company 8 The wording of the picket signs does not appear INTERNATIONAL UNION OF OPERATING ENGINEERS 37 his agency, if any, was specific rather than general and thus restricted to the picket line. His self-identification to Ritz as a representative of the Respondent might estop him from denying the agency but of course does not establish it. The precept that an agency may not be proved by the declarations of the purported agent is rooted in sound principle. Ritz did not testify that this person, not identifiable from the record, was such an agent but only that he asserted himself to be such. The Respondent cannot be held liable for the conduct of one whose identity is not shown and whose authority to speak for it rests upon speculation. I conclude that the General Counsel has failed to establish any violation of the Act by virtue of the in- cident at Yankee Body Shop. I credit the testimony of Dias and Smedley that Mussro said in their presence, and within hearing of other Crowell & Larson employees; that they would not work as long as a Crook employee was on the job. I further credit their testimony that Mussro said he would stop the men from working if he discovered that the Tourna- pulls came through the picket line. In reaching this conclusion I have, of course, refused to credit the denials of Mussro that he induced and encouraged Crowell & Larson employees in such fashion. I find that Mussro stayed at the job site for about 1 hour and that he was not occupied for that period in routine checking of union cards. Mussro's sworn testimony that he took the serial numbers from the Tournapulls in the practice of a hobby was deliberately false. I consider his entire testimony concerning the incident, except to the extent it was corroborated by Dias and Smedley, to be unworthy of credit The testimony of Santillan and Vlashart is uncontroverted and is credited. It fol- lows that Willis induced and encouraged Vlashart to refuse to accept delivery of the roller from Crook and that Vlashart was thus induced and encouraged to refuse to perform services for his employer. A purpose of the picketing on this occasion was to prevent Paving Materials, Vlashart's employer, from doing business with Crook. Willis was told what action was necessary to prevent acceptance of the roller and took it. The fact that Paving Materials instructed its driver to leave rather than take the roller in these circumstances affords no shield for the Respondent but serves only to accentuate the effectiveness of its picketing. I find no evidence that the picketing on this occasion was directed in any fashion toward employees of Union Pacific or that it took place at a point where it naturally would have the effect of inducing or encouraging them to refuse to perform services . In consequence I find no violation of the Act established by the evidence concerning any employee of Union Pacific. B. Concerning Shepherd The Respondent has never been certified as bargaining representative of Shepherd's employees but on May 23, 1955, placed pickets at Shepherd's premises bearing signs reading, "This firm is non-union." Later the signs were replaced by others reading, "Shepherd Tractor Company is unfair to organized labor." In March and April representatives of the Respondent asked Shepherd to sign a contract covering em- ployees within Respondent 's jurisdiction . Shepherd suggested that an election be arranged in order to ascertain the employees' desire in the matter. This suggestion was rejected and the pickets appeared. Shepherd filed a representation petition with the Board on April 8 . It was dismissed when Respondent disclaimed interest in becoming bargaining representative. Shepherd again filed a petition on May 15. Respondent then suggested a meeting to discuss an agreement. 1. On April 22, 1955, Leland Caquelin and Alfred Wladyka, both mechanics in Shepherd's employ, went to a construction site near or in Creal, California, to make repairs on machinery leased by Shepherd to Ralph Welker. The day passed with- out significant incident. Robert C. Rodgers, a member of the Respondent, and his helper, Busby, both employees of Welker, assisted the Shepherd employees in making the repairs. Caquelin and Wladyka returned on the 23d and after working about 30 minutes were approached by Manuel De Flumere, a business representa- tive of the Respondent, who invited them to join the Respondent. Some dis- cussion ensued concerning the advantages of union membership in which De Flumere said that there was to be a "crack-down" on employers of nonunion labor, particu- larly Shepherd, to stop the practice of nonunion workers taking jobs from union members. De Flumere conversed briefly with Rodgers, possibly within hearing of Busby, and left. He returned within a short time and again spoke to Rodgers be- fore taking his final leave. Upon De Fluemere's second departure, Rodgers came to Caquelin and Wladyka and told them that they would have to leave or he and Busby would. Following instruction from Shepherd that in the event of threatened trouble of this nature they should retire, Caquelin and Wladyka left the job. Rodgers testified that he was "acting" shop foreman for Welker on the Creal job, having responsibility for keeping the machinery in repair. Busby was his helper. In 38 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD the event of breakdown, the equipment operator affected generally would assist Rodgers in repairing the damage and in that situation would work under Rodgers' direction. It seems clear to me, however, and I find that Rodgers was not such a supervisor as the Act defines but was a skilled mechanic who, while working at his trade, directed the efforts of his assistant, Busby, or another, in performing a repair job. Rodgers testified that De Flumere told him that the Shepherd employees were nonunion ; that either they or Rodgers and Busby must leave the job. De Flumere did not testify. I find that De Flumere instructed Rodgers to refuse to perform services for Ralph Welker as long as a Shepherd employee was on the job. This instruction may not have been heard by Busby, Rodger's helper, but it is a reasonable inference, and I draw it, that De Flumere intended Busby to follow the same instruction. Both Busby and Rodgers were members of the Respondent. 2. On May 24, Ralph Sterling, an employee of Shepherd, went to a reservoir proj- ect where McCammon-Wunderlich Company, hereinafter McCammon, was perform- ing work for the purpose of repairing brakes on equipment which had been sold by Shepherd to McCammon. Upon his arrival in a pickup truck, bearing Shepherd's name, Sterling was accosted by a man whom he identified as "Hunt" who asked if Sterling intended to do some work there. Sterling replied that he did and "Hunt" said that in such event he would "close the job down." Sterling went to report this development to Bob Bothel, McCammon's head mechanic, and while he was doing so "Hunt" drove about the project giving a "thumbs up" sign. According to Sterling this is a signal to equipment operators to cease work. In any event they did so, driv- ing their rigs to a central point and stopping the progress of the job. Clint Waggoner, McCammon's superintendent, learning of the work stoppage, appeared on the scene, directed Sterling to leave, and told Red Hunter, Respondent's job steward on the reservoir project, that the Shepherd employees were leaving and that Hunter could send the men back to work. Work was resumed after an interrup- tion of about 20 or 30 minutes. Waggoner then telephoned J. H. Seymour, a repre- sentative of the Respondent, and complained of the stoppage. Seymour answered that there was a picket line at the Shepherd shop and that Shepherd employees would not be permitted to work at the reservoir job. James Green, McCammon's carpenter foreman, testified that on May 24 he ob- served Hunter in conversation with a crane operator 9 who was standing on the ground beside his equipment. Green asked the operator why he was not working. Hunter answered that a Shepherd truck was on the job and, in Green 's presence, told the crane operator to swing the crane boom out and drop his load or he would be fined $100. The operator asked Green for advice and the latter suggested that he do as he was told. Hunter then left, according to Green, giving the "thumbs up" signal to other workers. In consequence all work ceased. James Luther and Raymond Thomason, both employees of McCammon and members of the Respondent, testified that in the early morning of May 24 all of the equipment operators decided to cease work if nonunion men appeared on the job. Both testified that Hunter was not present when this decision was reached and denied that such a course of action had been suggested by any representative of the Respondent. Each testified that he quit work when he saw the Shepherd truck arrive on the job and that he saw no signal to quit work given by Hunter. Hunter did not testify. I credit the uncontroverted testimony of Foreman Green concerning Hunter's words and conduct and find that on the morning of May 24 Hunter threatened the crane operator with a fine if he did not cease work. That the operator was not paid directly by McCammon is not controlling. He was before the work stoppage per- forming services for McCammon under the direction of McCammon's foreman. I find further that the "thumbs up" signal which Green saw Hunter give to McCammon employees constituted a direction from Hunter, as a representative of the Respond- ent, that they cease work for McCammon. Even if Luther and Thomason testified truthfully that without suggestion or encouragement from any representative of the Respondent the equipment operators decided not to work when a nonunion man appeared on the job (and I have serious doubts concerning the veracity of this testi- mony), Hunter's threat to the crane operator and his signaling to other workers con- stituted an encouragement to them to adhere to that determination. The man named by Sterling as "Hunt" may just possibly have been someone other than Hunter but it is unnecessary to reach a finding on that point. If Sterling talked to and observed Hunter what he saw and heard is merely corroborative of the already credited testi- The crane operator was an employee of Valley Crane Service but worked on the reser- voir job under the direction of Foreman Green INTERNATIONAL UNION OF OPERATING ENGINEERS 39 mony of Green . Finally, I credit the uncontradicted testimony of Waggoner that Seymour admitted it to be the purpose of the Respondent to prevent McCammon from doing business with Shepherd. Conclusions By inducing and encouraging employees of Crowell & Larson and Paving Materials Company to refuse to perform services for their respective employers with an ob- ject of forcing or requiring such employers to cease doing business with Crook, the Respondents have violated Section 8 (b) (4) (A ) of the Act. Harold McNeel, labor relations representative and assistant manager of the Respondent , testified that the picket lines at Crook and Shepherd existed for the purpose of protesting dis- charges and the practice of nonunion workers finding employment in the same field as members of the Respondent. However, this case does not place in issue the legality of the picket lines about the premises of either employer. It is only when inducement and encouragement of employees of other employers to refuse to perform services is established that a violation in the terms of this complaint occurs. Such inducement and encouragement has been found as well as one of its objectives. I am convinced and find that the other alleged objective , to force Crook to recognize the Respondent as bargaining representative of Crook employees , has also been proven. True, the Respondent has formally disclaimed such a purpose but testimony that since such disclaimer attempts have been made to persuade Crook to extend recognition is undenied. I find that in inducing and encouraging employees of Crowell & Larson and Paving Materials Company to refuse to perform services for their respective employers, the Respondent had as an objective forcing or requiring Crook to recognize or bargain with it as the representative of Crook employees without having been cer- tified as such representative . The Respondent thereby violated Section 8 (b) (4) (B) of the Act. By De Flumere's instruction as to employees of Welker, and by Hunter's words and signals directed to employees of McCammon , the Respondent induced and encouraged such employees to refuse to perform services for their respective employers with an object to force or require these employers to cease doing business with Shepherd. I find this to constitute a violation of Section 8 (b) (4) (A ) of the Act. As in the Crook situation, another objective , at least until and on May 11, 1955, was to force or require Shepherd to recognize or bargain with the Respondent as the representa- tive of Shepherd employees without having been certified as such representative. The Respondent thereby violated Section 8 (b) (4) (B ) of the Act.iO III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with the operations of Crook and Shepherd set forth in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to and have led to labor disputes burdening and ob- structing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (A) and (B), it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. For reasons set forth above, it will be recommended that the complaint be dismissed to the extent that it alleges violations to have occurred concerning Yankee Body Shop and Union Pacific Rail- road. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Operating Engineers , Local 12, is a labor organization within the meaning of Section 2 (5) of the Act. 10 It is entirely possible that the Respondent has now abandoned this objective as to both Crook and Shepherd Its representative, McNeel , testified at this hearing that it entertained no such ambition However , as recently as May 11 , it sought a meeting with Crook, Shepherd, and other employers to negotiate an agreement. It is true that under date of May 17 the Respondent advised the Regional Office of the Board that it did not claim to represent Crook or Shepherd employees . There is reason to believe however that this disclaimer was tactical as within a week or 10 days 1 of Respondent's representa- tives requested a meeting with Crook foi the purpose of reaching agreement concerning Crook's employees 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Union of Operating Engineers, Local 12, has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B ) of the Act by inducing and encouraging employees of Crowell & Larson and Paving Materials Company to engage in a strike or concerted refusal in the course of their employment to perform services for their respective employers ; objectives thereof being to force and require such employers to cease doing business with Crook Company and to force the said Crook Company to recognize or bargain with International Union of Operating Engineers , Local 12, , although that organization has not been certified as the bargaining representative of Crook employees in accordance with the provisions of Section 9 of the Act. 3. International Union of Operating Engineers , Local 12, has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B) of the Act by inducing and encouraging employees of Ralph Welker and McCammon-Wunder- hch Company to engage in a strike or concerted refusal in the course of their employ- ment to perform services for their respective employers , objectives thereof being: (a) To force and require Welker and McCammon to cease doing business with Shepherd Machinery Company; and (b) To force and require Shepherd Machinery Company to recognize and bargain with International Union of Operating Engineers , Local 12, as the collective-bargain- ing representative of Shepherd employees , although that organization has not been certified as such bargaining representative in accordance with the provisions of Sec- tion 9 of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Hazel-Atlas Glass Co. and Clarksburg Paper Company and The Glass Bottle Blowers Association of United States and Canada, AFL-CIO, ' Petitioner. Case No. 3-RC-1609. January 9,1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William J. Cavers, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a single unit of office clerical employees of Hazel-Atlas Glass Co., herein called Hazel-Atlas, and Clarksburg Paper Company, herein called Clarksburg. The Employers contend i The AFL and CIO having merged subsequent to the hearing in this proceeding, we are amending the identification of the affiliation of the Union for purposes of this Direction of Election 115 NLRB No. 8.